Understanding Kafala: An archaic law at cross purposes with modern development

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Kafala was "supposed to be a good system that makes it incumbent upon nationals to look after non-nationals.” Today it's a tool of extreme exploitation and oppression.

Mar 11 2015


Priyanka Motaparthy

The writer is an independent human rights researcher and writer living in Cairo. She was previously a researcher at Human Rights Watch where she authored reports on migrant workers in Kuwait, the UAE, and Qatar. She is currently researching a book on migrant workers in the Gulf.

When reading about conditions of migrant workers in the Middle East, you will inevitably come across criticism of the kafala, or sponsorship system. Human rights groups say the migration management system enables exploitation and forced labor—labor extracted by under the threat of penalty, and not offered voluntarily by the worker. The media have likened employment conditions under kafala to “modern-day slavery.” In response, governments in the region have repeatedly promised to abolish or reform the kafala system. Despite these promises, meaningful change in the system always remains just over the horizon, with only slight and halting reforms in a few of the Gulf countries (see sidebar).

Meanwhile, rigid sponsorship laws and regulations continue to define the choices and conditions of the millions of migrant workers in the region. Most of these migrants come from South or Southeast Asian or Africa. The majority are low-wage construction or service-industry workers, or domestic workers who toil under even harsher restrictions with far fewer protections. But even highly-paid and professional workers have suffered due to sponsorship regulations. There is no path to permanent residency or naturalization in Gulf countries, aside from marrying a citizen. All foreign residents are subject to the kafala system.

Kafala is a system of control. In the migration context, it is a way for governments to delegate oversight and responsibility for migrants to private citizens or companies.”

Clearly, understanding kafala is key to understanding why many migrant workers in the region find themselves in difficult or impossible situations, including conditions that amount to forced labor. But what exactly is the kafala system? Is it the same in every Gulf country? Is it solely to blame for migrant workers’ problems in the region? And why is it so bad, exactly?

Migrant-Rights.org provides the following guide to the kafala systems that governs labor migration in Gulf Cooperation Council (GCC) countries (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates), as well as for most workers in Lebanon and Jordan. Note that the kafala system does not govern all migrant workers in Lebanon; for example Syrian workers who have other routes to residency, and in Jordan, where special economic and trade zones are exempted from these restrictions.

What exactly is kafala?

The word “kafala” means sponsorship in Arabic.

What most people currently refer to as the kafala or sponsorship system consists of the laws governing migrant workers’ immigration to and legal residence in countries in the Middle East—primarily Gulf countries. While some countries, like Qatar, have an explicit law called the “sponsorship law,” others, such as Kuwait, include these provisions in their residency or immigration laws.

Kafala is a system of control. In the migration context, it is a way for governments to delegate oversight and responsibility for migrants to private citizens or companies.  The system gives sponsors a set of legal abilities to control workers: without the employer’s permission, workers cannot change jobs, quit jobs, or leave the country. If a worker leaves a job without permission, the employer has the power to cancel his or her residence visa, automatically turning the worker into an illegal resident in the country. Workers whose employers cancel their residency visas often have to leave the country through deportation proceedings, and many have to spend time behind bars.

Kafala regulation is overseen and enforced by each country’s Ministry of Interior. Workers’ immigration status is treated primarily as a security rather than a labor issue.

Providing an interesting basis for comparison, the word kafala actually also refers to the system under which children are adopted in Islamic countries.  Sharia law does not allow for legal adoption, giving adopted children same the legal status as biological children, but rather allows parents to “sponsor,” or guarantee the welfare of, an orphaned child and assume responsibility for its well-being.

How did Kafala begin?

There are differing theories. Social anthropologist Anh Nga Longva, in her book Walls Built on Sand: Migration, Exclusion and Society in Kuwait describes how kafala stems from the traditional pearl fishing economy in the Gulf. Boat owners would “sponsor” pearl divers each season, advancing them their room and board on the pearling boat, as well as expenses for their families. At the end of the season, the owners would subtract these expenses from the wages crew members had earned and pay them the balance—if any remained. Typically, the divers remained in a continuous cycle of debt.

The concept also harkens back to a different time in Gulf society, when populations and particularly the number of foreigners, was significantly smaller. Newcomers to the society were sponsored by a local who took legal and economic responsibility for their welfare as well as for the consequences of their actions. If their guest—the sponsored individual—committed a crime while under their sponsorship, they also bore responsibility. Kafala was "supposed to be a good system that makes it incumbent upon nationals to look after non-nationals", Azfar Khan, senior regional migration specialist at the ILO's Regional Office for the Arab States, told the UAE’s National newspaper last year. But while sponsors do remain legally responsible for those under their sponsorship under today’s laws, they are rarely held to account for violating their own legal commitment to provide for the welfare of those they have sponsored.

In today’s labor market, a system developed in smaller societies with closer webs of interpersonal relations lacks adequate checks and safeguards. Individuals can’t be counted on to guarantee the well-being of those under their sponsorship without oversight—particularly when it can cut against their own economic interests. Employers have an incentive to pay workers less, skimp on benefits, and demand more hours of work. Companies rather than individuals sponsor most migrant workers in Gulf economies. A company may sponsor dozens—even hundreds—of foreign workers, and the company’s owners often have little to do with overseeing their daily working conditions or payment.

Qatar and Saudi Arabia are the only Gulf countries that require migrant workers to have official “exit permits” before they leave the country.

Is it the same in every Gulf country?

Though the laws and regulations that make up the kafala system are substantially similar across Gulf countries, there are also some noteworthy differences.

When discussing migrant workers, we will look at three key restrictions that are part of the kafala system. These are restrictions on:

  • Whether and when workers can change jobs without a sponsoring employer’s permission
  • Workers’ ability to quit jobs without a sponsor’s permission
  • Workers’ ability to leave the country without a sponsor’s permission

These restrictions directly impact all other aspects of a worker’s life—including whether he or she is able to insist on other contractual or legal rights, and to find a remedy if rights are violated. What can a worker do if he is not paid? What if she is asked to work much longer hours and is not paid overtime? What if his food is not adequate? What if she is asked to sleep on a floor? If an employer’s permission is required to legally quit, or to leave the country, and the employer has the ability to cancel their employee’s visa or to legally accuse them of “escaping” or quitting their job (which results in penalties), the answer is: not much.

Qatar and Saudi Arabia are the only Gulf countries that require migrant workers to have official “exit permits” before they leave the country.  This means that every time a sponsored employee—whether a low-paid construction worker or a highly-paid white collar executive—wants to leave the country, they have to request an exit permit from their employer. Employers have denied their sponsored employees exit permits in cases of employment disputes. In one famous case, professional football player Zahir Belounis, a French citizen playing for a Qatari professional football team, was denied an exit permit for nearly two years after he got into a legal dispute with the team’s management. "I have been living a nightmare for several months because of the kafala system,” he wrote in the Guardian newspaper. “This system is slowly killing me and many other people risk suffering in the same way."

However, in other countries, employers can also take steps to prevent their sponsored employees from leaving the country without their consent. If employers notify the government that their employee has “absconded”—left their job without permission—the worker can face criminal charges. Kuwait’s Head of the Public Manpower Authority announced, in November 2014, that the country had 12,000 unresolved “absconding” charges registered against migrant workers, and that workers’ residency visas were cancelled immediately when sponsors filed their claims. The Kuwait Human Rights Society described absconding claims as “a sword hanging over the heads of workers….misused…to prevent workers from receiving their financial dues.” Workers with absconding charges cannot leave a country until those charges are cleared, usually only through the intervention of their home country embassy and the agreement of their local sponsor. Some workers have to spend time in immigration detention while the charges are cleared—even if they had a good reason for quitting their job, such as their employer not paying them.

In Bahrain workers can change jobs without permission after working a year for their initial sponsor. In the UAE, they can only change employers without permission if they receive special permission from the Ministry of Labor after meeting certain conditions, for example proving that their employer has violated a term of their contract, or proving that the employer unilaterally ended their employment. Outside of these limited exceptions, the employer must agree and must in many cases prove their agreement by providing a “no objection certificate.” However in the rest of the GCC countries, workers can’t change jobs without their sponsor’s permission no matter how long they have worked. The only way around this requirement is to seek special permission from the Ministry of Interior, and in some situations to file a court case.

One of the biggest problems behind the kafala system is that it makes it so difficult for workers to contest or complain when any part of their contractual agreement is not upheld.

Does the kafala system allow employers to confiscate passports?

No. In fact, it is illegal for employers to confiscate passports under regulations passed by each of the GCC countries.

Nevertheless, passport confiscation remains a common practice that employers in the region use to further keep workers in check, afraid to quit jobs, because governments have failed to punish employers for holding passports. When workers approach government bodies or their embassies for help getting back their passports, the typical response is to call employers and request that they return the passport.

The ILO has identified the confiscation of identity documents, including passports, as a key indicator of forced labor.

Why is the kafala system so prone to abuse?

One of the biggest problems behind the kafala system is that it makes it so difficult for workers to contest or complain when any part of their contractual agreement is not upheld, when any of their legal rights are violated, or even when they face more serious forms of abuse. Complaining puts them in conflict with their sponsor, who has the power to cancel their residence visa and have them deported.  A court order, or special permission from the Ministry of Interior, could allow workers legal permission to change jobs. But for many, this would take too long and cost too much in living expenses, transportation costs, and potentially legal or court fees, to be worth it.

Take, for example, the following case:

Gul Nawaz, an Indian expatriate living in Saudi Arabia, wrote of his plight to a Saudi newspaper columnist. When he tried to transfer jobs, his sponsor (kafeel) registered him as “huroob”—a “runaway” employee. In order to resolve the issue, his sponsor asked for 20,000 riyals (approximately US$5,300) in return. Gul Nawaz writes that he paid the money, but that when his new employer went to register his employment paperwork, he found that Nawaz’s former sponsor had not approved the transfer, and that the charge of “runaway” remained. Without the sponsor’s cooperation, Nawaz was helpless. When he contacted his sponsor again, he says, the sponsor asked for more money and for his passport in order to resolve the issue. He paid, and again the issue was not resolved, nor did his sponsor return his passport. When he contacted him yet again, the sponsor asked for more money, which he again paid. After that, his sponsor stopped answering his calls. Nawaz writes:

Today my status is that I have become illegal through no fault of my own…I cannot move anywhere and cannot work. I have been without work for a year.  I have not been able to send money to my family for a long time. I am the only breadwinner in my family…I have paid huge amounts to my sponsor and I have borrowed from many friends, slept hungry many nights…

Though Nawaz could have tried to pursue his claim through the Saudi courts, it is telling that he chose to fall deeply into debt and undergo hardship rather than to do so. In order for him to leave Saudi Arabia, he will have to clear the “runaway” charge against him, and perhaps also pay fines for staying beyond the legal period of his residency. His sponsor exercised his power to prevent him from working elsewhere, and to cancel his legal residence. When he eventually leaves the country, he will most likely have to do so through deportation. Even if there was a legitimate employment dispute, Nawaz’s sponsor held the power to prevent him from taking a new job, render him an illegal resident, and force him to leave the country through deportation—powers that Nawaz, the employee, does not share.

The rare labor strikes in Gulf countries also illustrate how employers and governments often work together rather than investigating workers’ grievances. In many cases, across the Gulf, striking workers risk being deported rather than gaining access to their contractual rights, or finding remedies after they were cheated or deceived in the labor recruitment process. Striking is illegal in all Gulf countries. Nevertheless, authorities most often seem to penalize workers for striking, but not sponsors for creating the often illegal conditions they protest, or securing workers’ legal rights. Workers have been deported without receiving months’ of back pay they were owed, or their end-of-service payments—losing significant amounts of money. In 2014 alone, Migrant Rights reported on how 2000 garment factory workers in Bahrain went on strike to ask for improved working conditions including better food and medical care, as well as a wage increase. The alleged organizers of the strike were deported. Meanwhile workers achieved only a modest wage increase of $21 per month, and employers did not meet their demands for better living conditions. In the UAE, 3000 workers went on strike for better wages, after which 300 were arrested, detained, allegedly tortured, and then deported.

In many cases, sponsoring employers also provide housing and food for the worker. If he or she complains, an employer can tell the worker to leave if they don’t accept their conditions. Many workers—especially domestic workers who live and work in their sponsors’ homes—have no place to go.

Their wages may be kept artificially low, since sponsors don’t need to rely on paying attractive wages to keep talented or experienced employees.

Is kafala the only thing leading to abuse of workers’ rights in Gulf countries?

No. A combination of factors can contribute to worker’s exploitation or difficulty accessing their rights. One major factor that also contributes to their entrapment in exploitative working conditions is the system of recruitment fees. Most workers pay huge recruitment fees, as many as a few thousand dollars, in their home country in order to obtain jobs in the Gulf. To do so, they take on debt with high interest rates, sometimes securing the debt by mortgaging their farmland or the family home. With family members depending on them to send money to feed them and pay expenses, but more urgently, to make debt payments lest a moneylender take their home from them, migrants are under huge pressure to pay back these debts. But because the sponsorship system does not let them change jobs without their sponsor’s permission, there is only one way for them to pay them off—to take whatever job they find when they arrive in the Gulf, even if it is not what agents promised in their home countries.

Language and mobility are also huge barriers. Many first-time migrant workers do not speak Arabic, unless they are from other Arabic-speaking countries, and many do not speak English. Thus, they cannot ask for help in government offices, use official government help hotlines (many countries only offer services in Arabic), read legal documents, or use online services. And many Gulf countries have poor systems of public transportation, making it difficult for low-wage workers to reach labor complaint departments, hospitals, embassies, or courts.

Do all migrants have a bad experience under the kafala system?

Of course not. Many migrants have fair employers who pay them the agreed-upon wages on time, and provide all the legally-required employee benefits.  Some employers even go beyond what is required by law. Wealthier migrants are able to self-sponsor by making a significant investment in the country—by starting a business, or by buying property.

However even migrants who have a good relationship with their sponsor can be frustrated by the sponsorship system. Without their sponsor’s agreement, they are not able to take another, higher-paying job even if they have worked for that sponsor for several years, unless they work in a country that has amended its sponsorship regulations. Their wages may be kept artificially low, since sponsors don’t need to rely on paying attractive wages to keep talented or experienced employees.

Who suffers the most under kafala’s restrictions?

Workers who migrate based on false promises from recruiters in their home countries and then find that their salaries are lower than expected, workers whose employers do not respect the labor or immigration laws or the terms of their employment contract, and workers who get into a dispute with their employers or find themselves exploited or even extorted by their employers all suffer under the kafala system. Not all workers find themselves in these dire circumstances, and many have fair, even generous employers who give them what the law demands or more.

In terms of the laws in the region, as well as the conditions under which they work, domestic workers are the most vulnerable workers. Domestic workers are excluded from the labor law in all GCC countries as well as Jordan and Lebanon. This not only means that there are no legal limits on their working hours, no minimum wage, and no government-mandated benefits that other workers enjoy, but also that domestic workers have little or no access to the Labor Ministry and to dispute resolution mechanisms or labor courts set up in these countries. Government labor inspectors do not monitor their conditions. Many of the kafala reforms instituted in recent years, in particular the ability to change jobs without an employer’s consent, exclude domestic workers. This means that while workers covered by the labor law can change jobs if they are able to establish employer abuse, domestic workers have no straightforward legal route to change sponsors even when sponsors subject them to physical or sexual violence, go for months or years without paying them, or engage in other abuses of the utmost severity. In many cases, their only option is to pursue a court case—a lengthy and costly process that many prefer not to pursue.

Ahead of the rest? Bahrain’s Kafala reforms

Bahrain has been publicly praised for reforming its sponsorship system (some described the reforms as “abolishing” kafala), and for other legal reforms to better protect migrant workers.

In 2009, Bahrain changed a key sponsorship restriction that had previously allowed employers to exploit workers by preventing them from legally changing jobs. A new regulation let workers change jobs without their employer’s permission—they simply had to give notice a set period before leaving the job, and the notice period could not be longer than three months. They then had 30 days to find a new job before they were required to leave the country.

On paper, the change was revolutionary—workers who had previously suffered while employers did not pay them, or found themselves stuck in jobs that did not match the contracts they had signed in their home countries, could find another job without sacrificing the huge fees they had paid back home to come to Bahrain. In practice, workers found the process of changing jobs without employer consent confusing and time-consuming, bogged down by bureaucratic obstacles. Nevertheless it was a major step towards kafala reform—the most noteworthy step in any Gulf country to date.

However, in June 2011, the Bahraini government caved under pressure from local business interests, and changed regulations once more—this time in employers’ favor. Under the amended regulations, workers have to remain with employers for one full year before they were allowed to change jobs without their consent.

 

Further resources:

The Gulf Labor Markets and Migration website aims to collect legislation, translated into English, affecting the migrant labor market in all GCC countries. Some documents are only partially translated, with full-text Arabic documents linked.The site also publishes country-specific demographic data—information about the population—of each GCC country, as well as research papers.

The website GCC Legal collects a broad range of laws and regulations from GCC countries, but texts are available only in Arabic.

The article “Reforming the Kafala: Challenges and Opportunities Moving Forward,” by Azfar Khan and Helene Harroff-Tavel, contains a good overview of promised and attempted kafala reform in the region.

Ahn Nga Longva’s book Walls Built on Sand: Migration, Exclusion, and Society in Kuwait, based on extensive fieldwork and historical research, is an insightful portrait of how migration in Kuwait, as well as how the relationship between migrants and nationals has developed. The author, a social anthropologist who lived in Kuwait for many years, makes sharp and unflinching observations that resonate across the Gulf, and the book is an excellent read, avoiding academic jargon and opacity.

In his book City of Strangers: Gulf Migration and the Indian Community in Bahrain, Andrew Gardner argues that the kafala system is a type of structural violence enacted against the migrant worker community. The book is an anthropological study based on Gardner’s fieldwork in Bahrain, and illustrates his points through the interactions he had with migrants there, addressing the problems of low-wage workers as well as office workers and professionals.

Advancing the rights of migrant workers throughout the Middle East